Unsealed court opinions in the Mueller mystery grand jury case show how the court challenge evolved

Posted at 5:20 PM, Feb 28, 2019
and last updated 2019-02-28 19:20:56-05

Robert Mueller wanted a mystery foreign-owned company to stay so mysterious, his team of prosecutors didn’t want their lawyers to even say “no comment” to the press.

The judge overseeing the company’s months-long court challenge to dodge a Mueller subpoena wouldn’t be that restrictive — but she still wouldn’t allow the law firm to make public statements about the case.

Much is unknown about the company fighting Mueller’s subpoena. However, Chief Judge Beryl Howell of the US District Court for the District of Columbia filled in the backstory on Thursday when she publicly released six opinions she wrote since the company first brought the case in August 2018. In those opinions, the name of the country and of the company from which Mueller seeks key documents is still redacted.

The opinions confirm, in the surest language yet, that the company’s records are essential to an ongoing grand jury investigation and relate to “foreign interference in the 2016 presidential election and potential collusion in those efforts by American citizens,” according to Howell’s own words.

Here’s how the case has played out, according to the newly released documents.

The subpoena

It started on July 11, 2018, with a subpoena Mueller’s office sent to the company, a witness in the criminal investigation whose commercial business affected the US. Mueller had received approval within the Justice Department to pursue records from the company — even though a standoff with the foreign nation that owned it seemed possible. The prosecutors needed the records in two weeks, the subpoena said.

At first, the company’s lawyers appeared interested in helping the special counsel. They asked Mueller if they could share the subpoena with people in an unnamed city who could help collect the documents requested. The company had a few more requests, like a delay. Mueller wouldn’t agree to all that the company asked for.

The company took its challenge to court, arguing that as a foreign-owned entity, it should be immune from the needs of a criminal investigation. Howell held a hearing in September 2018 and said shortly after that the company had to turn over the documents. The company wouldn’t comply, so the special counsel’s office asked Howell to hold the company in contempt of court. Again, the company argued that its sovereign nation owner should be immune. Howell disagreed again.

Howell held the company in contempt on Oct 5, 2018, the same day she heard arguments. While Mueller’s office initially proposed she fine the company $10,000 per day for being in contempt of court, Howell raised the stakes. The fine she put in place was $50,000 a day — assessed until the company turned over its subpoenaed documents or until Mueller’s grand jury disbanded.

The fine would start seven days after the court of appeals ruled against the company, Howell wrote.

The appeal and more rejections

So the company tried its luck before the US Court of Appeals for the DC Circuit.

The arguments in December drew a crowd of reporters to the federal courthouse in downtown Washington, most convinced by this time that it was Mueller’s team fighting for the documents. But court security cleared an entire floor of the courthouse so the attorneys involved could enter and exit unseen. (CNN spotted Mueller’s appellate prosecutors leaving and returning to office around the time of the hearing.)

The appeals court sided with Mueller’s team four days later, on December 18. The next stop for the company was the US Supreme Court.

The Supreme Court initially put a hold on the fine situation until January 8. So the company went back to Howell in the trial-level court.

The fines for contempt of court were each day “a new blow to the dignity of a sovereign nation,” the company argued, Howell said. It also argued that the public’s interest in the “sound application of international law,” per Howell’s paraphrase, was another reason Howell should change her mind about the fines — even though the country backing the company was still unknown. The company asked for Howell to pause the fines as it waited for the Supreme Court to consider its case, according to the newly released opinions.

But Howell wouldn’t. “Each day that [the company] refuses to comply with a subpoena that now has the imprimatur of both this court and the DC Circuit further delays a nearly six-month process. Staying an order expressly intended to pressure [the company] to comply with that valid subpoena only compounds the delay,” Howell explained, denying the company a third time.

The fine of $50,000 a day should start mounting beginning January 15, Howell decided. Soon after, the DC US Attorney’s Office started working on the case alongside Mueller’s team, according to circuit court documents. It was an indication among many that Mueller’s team is winding down.

“The need for expeditious resolution of all contested legal issues arising from this grand jury remains pressing, not only because of the issues at stake but also [REDACTED],” Howell wrote in a January opinion — in one of the sentences that adds to the mystery of the case.

Around this time, CNN was preparing to report that the law firm involved was Alston & Bird. The Washington Post had already written that a foreign-owned bank was the company that faced the subpoena.

Alston & Bird told the judge it wanted to provide a simple “no comment” to media requests, yet Mueller said the type of disclosure the law firm proposed “would materially prejudice the due administration of justice,” according to Howell’s summaries. CNN published a story naming the law firm on January 9, the day before Howell heard the arguments over how the sides should approach media requests. Lawyers and employees of the law firm still have not responded to requests for comment.

Howell ultimately told the two sides they could not speak about the case beyond what was known in the public record. Since then, the District Court, Circuit Court and Supreme Court have gradually made documents available in the case.

Fines above $2 million

Fines of $50,000 a day still appear to be mounting against the company as it refuses to turn over documents. The total amount owed appears to stand at more than $2 million.

But in a late January opinion from Howell released Thursday, she articulates how the company and the prosecutors were still in a stand off. “Both [the company] and the government are maneuvering to gain the more advantageous position,” Howell wrote on January 24. The company was arguing it would never have to actually pay the fines because it was owned by a foreign country and was pressing the case at the Supreme Court. Prosecutors wanted to let the fines pile up before collecting the sanctions.

Prosecutors hadn’t yet even tried to seize the company’s assets or properties, a necessary step before Howell would make additional rulings of consequence, she wrote. She didn’t even know the property the US government would want to seize.

“The government cannot simply take the Contempt Order to a court or sheriff and demand that a lien be placed on [the company’s] property. A judge must first enter a judgment for a sum certain and an order authorizing that conduct,” Howell wrote. She didn’t want to “resolve enforcement questions based on a hypothetical sequence of events that might never actually come to pass.”

The company and federal prosecutors still appear to be in that stand off, with the company requesting Supreme Court review of the lower courts’ decisions commanding it turn over the documents and face fines. The country that Mueller has so badly wanted records from is still unknown.